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Facts
The assessee filed its return of income which was processed. Subsequently, a search u/s 132 was conducted. The Assessing Officer (AO) initiated assessment proceedings u/s 153A r.w. Section 143(3) and made additions based on post-search investigation, without relying on any seized incriminating material. The CIT(A) upheld the additions.
Held
The Tribunal held that additions cannot be made in the absence of any incriminating material found during the course of search, relying on the Supreme Court's decision in Abhisar Buildwell (supra). The assessment order and the CIT(A)'s order were quashed.
Key Issues
Whether additions can be made in assessment proceedings initiated post-search without relying on any incriminating material found during the search.
Sections Cited
139, 143(1), 132, 153A, 143(3), 147, 148
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Income Tax Appellate Tribunal, DELHI
ORDER
PER YOGESH KUMAR, U.S. JM:
The present appeal is filed by the Assessee against the order of Ld. Commissioner of Income Tax (Appeals)-30, (‘Ld. CIT(A)’ for short), New Delhi dated 27/01/2025 for the Assessment Year 2018-19.
Brief facts of the case are that, the Assessee filed return u/s 139 of the Income Tax Act, 1961 ('Act' for short) on 27/09/2018 declaring income of Rs. 35,84,000/-. The return was processed u/s 143(1) of the Act on 11/04/2019. A search u/s 132 of the Act was conducted on 06/01/2021 at the residential/business premises of Hans Group. Assessment proceedings has been initiated against the Assessee and an assessment order came to be passed on 31/03/2022 u/s 153A r.w.
Section 143(3) of the Act by making certain additions of Rs.
1. 42,10,50,000/- ‘related to issue detected during post search investigation’. Aggrieved by the assessment order dated 31/03/2022, the Assessee preferred an Appeal before the Ld. CIT (A). The Ld. CIT (A) vide order dated 27/01/2025, dismissed the Appeal of the Assessee. As against the order of the Ld. CIT (A) dated 27/01/2025, the Assessee preferred the presentAppeal.
The Ld. Counsel for the Assessee submitted that the addition made by the A.O. which is related to issues detected during the post search investigation as mentioned in the assessment order itself. The addition has been made by the A.O. in the absence of any incriminating material found during the course of search, therefore, relying on the Judgment of the Hon'ble Supreme Court in the case of PCIT, Central Circle-3 Vs. Abhisar Buildwell (2023) 454 ITR 212 (S.C) dated 12/05/2023, sought for deletion of the addition confirmed by the Ld. CIT (A), prayed for allowing the Appeal.
Per contra, the Ld. Departmental Representativerelying on the orders of the Lower Authorities, sought for dismissal of Appeal of the Assessee.
We have heard both the parties and perused the material available on record. In the present case, as on the date of search i.e. 06/01/2021 no assessment proceedings were pending for the year under consideration. As could be seen from the record, the addition made by the A.O. is not based upon any seized material and the addition has been made on the basis of analysis of balance sheet and bank statement of the Assessee during the post search proceedings. The entire assessment order there is no reference to any seized material and A.O. himself admitted the last page of the assessment order that addition is related to issue detected during post search investigation.
The Hon'ble Supreme Court in the case of Abhisar Buildwell Pvt. Ltd. (supra) held that addition cannot be made in the absence of any incriminating material found during the course of search. The relevant portion of the Judgment of Hon'ble Supreme Court are reproduced as under:-
“14. In view of the above and for the reasons stated above, it is concluded as under: iv) In case no incriminating material is unearthed during the search, the AO cannot assess or reassess taking into consideration the other material in respect of completed assessments/unabated assessments. Meaning thereby, in respect of completed/unabated assessments, no addition can be made by the AO in absence of any incriminating material found during the course of search under Section 132 or requisition under Section 132A of the Act, 1961. However, the completed/unabated assessments can be re-opened by the AO in exercise of powers under Sections 147/148 of the Act, subject to fulfillment of the conditions as envisaged/mentioned under sections 147/148 of the Act and those powers are saved."
By respectfully following the ratio laid down by the Hon'ble Supreme Court in the case of Abhisar Buildwell (supra), considering the fact that no incriminating materials/documents or any other evidence was found or seized during the course of search proceedings which resulted in addition against the Assessee, we find merit in thecontention of the Assessee's Representative. Accordingly, we quash the assessment order and the impugned order of the Ld. CIT(A).
Since, we have quashed the assessment on the ground that addition has been de-hors the incriminating material, other Grounds of appeal requires no adjudication.
In the result, appeal of the Assessee is partly allowed.
Order pronounced in the open court on 17th September, 2025